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Criminal Law
University of California, Hastings School of Law
Rappaport, Aaron

Rappaport – Fall 2009 – UC Hastings – Criminal Law


1.       Utilitarianism
Punishment is justified because it has social benefits by keeping dangerous people off streets.
Utility: greatest happiness for greatest number (benefit outweighs the costs)
Criticism: no difference in rates of recidivism, no way to reform prisoners
Overall distrust of government led to questioning of effectiveness and away from indeterminate sentencing
However, criminals don’t think about punishment when committing the crime
Some can’t rationally think about consequences (mentally ill, drug abusers)
Risk of getting caught is low
Diminishing Marginal Utility of Punishment
Can’t commit crimes while in prison
Assumes that there are no crimes in prison, or they don’t count
Selective incapacitation: targeting those most likely to recidivate
Innocent people are punished (made an example of)
Punished people are unhappy (everyone’s happiness matters in utilitarianism)
Fear of unjust punishment

2.       Retributive Justifications
Rejects the idea that the goal should be to promote good consequences
Punishment should be imposed because it is blameworthy
Just deserts: should punish based on culpability (greater punishment for greater intent)
Assumes free will
Public vengeance (mob mentality)
Too much power in the state

1.       Statutory Constraints on Sentencing

Mandatory Statutes
Offense specific
Minimum sentence for specific crime
Criticism: everyone gets same sentence, regardless of role
Recidivist (ex. Three strikes)

Sentencing Guidelines
Legislature created sentencing committee
Grid: severity x past offenses
Goal: to make sentences more uniform
Result: sentences have gotten more severe/longer
Relevant conduct: activity not related to charge can be taken into account
Judges can’t depart too far from guidelines, creating very rigid system which may exclude important factors
Lower standard of proof: factors only need to be proven to judge, not jury

2.       Constitutional Constraint on Punishment

6th Amendment (Right to Jury Trial)
Apprendi v. New Jersey (shooting into black house)
Is racial bias a sentencing factor (judge) or offense element (jury)?
RULE: Any element that exceeds statutory maximum is an offense element.
Blakely v. Washington (kidnapping)
Is the maximum the statutory maximum or the presumptive maximum?
RULE: Statutory maximum is the “maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant.”
Here, the presumptive maximum is the statutory maximum.
U.S. v. Booker (crack)
No difference between guidelines passed by administrative agencies and the legislatures.
Federal guidelines deemed “advisory” since they were not sufficient constitutionally.

8th Amendment (Cruel and Unusual Punishment)
Ewing v. California (3 strikes)
Stealing $400 golf clubs triggered 3 strikes law
RULE: Punishment violates 8th Amendment when sentence is grossly disproportional to crime
Three strikes is not grossly disproportional because of past history

Other Constitutional Limits
Privacy rights (abortion, contraception, etc.), free speech
Lawrence v. Texas: homosexual relations are protected

California’s Response
Determinate Sentencing Law
Assigns 3 possible outcomes for each crime (aggravated/normal/mitigated)
Judge must give normal sentence unless he finds aggravating or mitigating circumstances
Cunningham v. CA: this law is unconstitutional – tells legislature to go back and fix it
Temporary fix similar to before, but gives discretion to 3 sentences
Three Strikes Law: not counted as going beyond statutory maximums because it’s based on prior convictions and on jury findings


Kansas v. Hendricks (Sexually Violent Predator Act)
It is not double jeopardy because the Act is a civil sanction with a non-punitive purpose
Not retributive because it’s not based on a previous crime
Not deterrence because people wh

ission is defined by law or duty to perform is stated by law
Possession is an act, so long as one knows of possession
Cannot be excessively vague


Must be a concurrence of act and intent
Utilitarian: punish intentional over unintentional; get more dangerous people off streets
Retributive: measures how freely someone does an act which is important in determining blameworthiness and the punishment

6.       The Model Penal Code Approach
·         MPC mens rea categories
o   Purpose: it is one’s conscious object for the event to occur
o   Knowledge: practically certain the event will occur
o   Recklessness:aware of the substantial and unjustifiable risk (1st prong, objective) BUT consciously disregards the risk (2nd prong, subjective)
o   Negligence:should have been aware of substantial and unjustifiable risk
o   Purpose and knowledge are subjective
o   Recklessness and negligence are based on what a reasonable person should know
·         Rules for interpretation
o   (1) Break statute into elements
o   (2) Assign a mens rea to each element (traveling rule only forwards)
§ Default mens rea is recklessness
o   (3) Determine if defendant satisfies each element’s mens rea
·         People v. Rypinksi (gun thought to be unloaded)
o   Must prove that he was reckless to all elements; conviction reversed
·         People v. Ryan (mushrooms)
o   Hallucinogenic isn’t equated with total weight of mushrooms, so couldn’t prove knowledge
o   However, court allowed future prosecutions to assume knowledge of ratio
·         Lesser Crime Rule: if stuck in the middle, then adopt lesser crime

7.       The Common Law Approach